Mr. Naresh Arora vs M/s. Paras Poly Films Pvt. Ltd.

Reva Khetrapal, J.—The present suit has been filed by the Plaintiff seeking recovery of a sum of Rs. 22,40,000/- from the Defendant alongwith pendente lite and future interest at the rate of 18% per annum. Brief facts leading to the filing of the suit are as follows. The Plaintiff is the sole proprietor of M/s. Prakash Dye Chem and is engaged in the business of sale and purchase of various types of industrial chemicals. The Defendant, in March 1998, approached the Plaintiff for purchase of various chemicals and other raw materials, which were duly supplied to and utilized by the Defendant. The Defendant placed orders on the Plaintiff from time to time and the Plaintiff duly supplied the orders from time to time, and in respect of the supplies so made, the Plaintiff raised bills upon the Defendant. As the Defendant was making on-account payments towards the supplies made, the Plaintiff maintained an open and running current account in the usual course of business, entering therein all supplies made to and payments received from the Defendant. The Plaintiff claims that as on 12.08.2002, when last supply of chemicals was made by the Plaintiff to the Defendant, a sum of Rs. 15,01,750/- was due from the Defendant. Inspite of repeated requests from the Plaintiff, the Defendant failed and neglected to pay the said amount, though it is stated by the Plaintiff that the Defendant had issued certain cheques towards part payment of the amount due but the same had been dishonoured for want of funds, in respect of which the Plaintiff also initiated proceedings u/s 138 of the Negotiable Instruments Act, 1881. By way of the present suit the Plaintiff seeks to recover the aforesaid sum of Rs. 15,01,750/- from the Defendant alongwith pre-suit interest at the rate of 18% per annum from 12.08.2002 till the date of filing of suit amounting to Rs. 7,38,250/-, in all the Plaintiff claims a sum of Rs. 22,40,000/- from the Defendant.

Summons of the suit were served on the Defendant by way of publication in "The Statesman" as well as in "Amar Ujala" both dated 28.07.2006, but the Defendant failed to appear despite service and was proceeded ex parte on 25.09.2006. At this juncture, it is also pertinent to point out that the Defendant, after three years of being proceeded ex parte, appeared before this Court through his counsel on 10.07.2009 and filed an application praying for setting aside of the order dated 25.09.2006, which was dismissed by this Court on the same day, i.e., on 10.07.2009. Thereafter, the Defendant filed an application for opportunity to cross-examine the Plaintiff, but no one appeared on behalf of the Defendant on the day the said application was posted and the same was dismissed as not maintainable on 21.08.2009. The Defendant then appeared on and off but did not choose to participate in the proceedings nor applied for setting aside of the order dated 21.08.2009.

Ex parte evidence was led by the Plaintiff by tendering his affidavit by way of evidence, which is marked as Exhibit PW1/A, and proving on record documents marked as Exhibits PW1/1 to PW1/12. The Plaintiff also examined PW2-Shri Dinesh Kumar Sharma, Superintendent, Central Excise, Kundali Division, Sonepat and PW3-Shri J.S. Atwal, Superintendent, Central Excise, Range 11, Karampura, New Delhi. The testimonies of these witnesses is unchallenged and unrebutted on record.

I have heard the counsel for the Plaintiff and scrutinized the record. Exhibits PW1/1 to PW1/7 are the Statements of Account of M/s. Paras Poly Films Pvt. Ltd. (the Defendant) in the books of the Plaintiff respectively for the period from 01.04.2005 to 23.07.2005 and for the financial years 2004-2005, 2003-2004, 2002-2003, 2001-2002, 1999-2000 and 1998-99. Exhibit PW1/4 which is the statement of account for the financial year 2002-03 shows a debit balance of Rs. 15,01,750.40, which is carried forward in subsequent years as reflected in Exhibits PW1/1 to PW1/3. The Plaintiff also proved on record invoices raised by the Plaintiff on the Defendant for the period from 14.07.2002 to 12.08.2002, from 05.05.2001 to 04.07.2001, from 01.06.1999 to 30.09.1999 and from 14.04.1998 to 24.12.1998 as Exhibits PW1/8 to PW1/11. PW3 identified the authentications/endorsements made by the duly authorized Officer of his Department on the documents Exhibits PW1/8 to PW1/11. PW2 proved on record copy of the Registration Certificate of the Defendant issued by the Central Excise as Exhibit PW2/A and the Sales Tax Form ''C'' No. 0878784 dated 28.12.2002 submitted by the Defendant to the Plaintiff for the sum of Rs. 1,99,980/- for the period 01.04.2001 to 31.03.2002 as Exhibit PW1/12.

In view of the aforesaid unrebutted oral and documentary evidence on record, it stands established to the satisfaction of this Court that the Defendant was purchasing various chemicals and other raw materials from the Plaintiff, in respect of which the Plaintiff raised invoices on the Defendant and maintained an open and running current account. It is also proved on record that the last supply was made to the Defendant by the Plaintiff on 12.08.2002 through Exhibit PW1/8(colly) which contains the two invoices dated 12.08.2002; and the balance outstanding shown in Exhibit PW1/1 to PW1/4 is to the tune of Rs. 15,01,750.40. The Plaintiff is accordingly held entitled to payment of Rs. 15,01,750/- along with pre-suit interest at the rate of 18% per annum from 12.08.2002 till the date of filing of the suit, that is, in all Rs. 22,40,000/- with pendente lite and future interest at the rate of 18% per annum from the date of filing of the suit till realization. The suit stands decreed in the above terms. Registry shall draw up a decree sheet accordingly. CS (OS) No. 88/2006 stands disposed of accordingly.